Shchukin House Ou v Iseev

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Shchukin House Ou v Iseev 2017 NY Slip Op 30421(U) March 2, 2017 Supreme Court, New York County Docket Number: 155936/2016 Judge: Erika M. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 155936/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 03/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 155936/2016 SHCHUKIN HOUSE OU, Plaintiff, DECISION/ORDER -againstRUSTAM ISEEV, Defendant. RUSTAM ISEEV, _Third Party Plaintiff, -againstNIKOLAY SCHUKIN and PAVEL-ABRAMOV ' . Third Party Defendants. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Notice of Motion and Affidavits/Affirmations/ Memos of Law annexed Notice of Cross-Motion and Affidavits/ Affirmations/Memos of Law annexed Opposition to Cross-Motion and Reply Numbered 1 2 ERIKA M. EDWARDS, J.: Plaintiff Shchukin House Ou ("Plaintiff') brought this action against Defendant Rustam Iseev ("Defendant") seeking to recover damages in excess of $60 Million, the return of five works of art allegedly provided to Defendant pursuant to a proposed consignment agreement and an accounting for Defendant's alleged unlawful conversion, breach of fiduciary duty, breach of a proposed contract, unjust enrichment and prima facie tort. 2 of 5 [* 2] INDEX NO. 155936/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 03/03/2017 Plaintiff now moves for summary judgment in its favor as againstDefendant and for an order, pursuant to CPLR 2701, requiring Defendm;it Rustarn Iseev to return to Plaintiff the five works of art or in the alternative requiring Defendant Rustam Iseev to post a bond; a default ·judgment and/or assessment of damages for $60 Million, costs and attorney's fees. and reasonable attorney's fees and sanctions for "frivolous conduct." For the reasons set forth herein, Plaintiffs motion for summary judgment is DENIED with prejudice as Plaintiff failed to .establish his entitlement to judgment in his favor as a matter of law. . Plaintiff has previously filed multiple orders to show cause seeking court orders requiring Defendant to return the works of art, but hasbeen unsuccessf\11 in obtaining such coUrt order. Now, Plaintiff argues in substance that it is entitled to summary judgment in its favor because it has demonstrated ownership of the works of art, a right to possess the works of art, that Defendant has no standing to claim possession of the works of art and that Defendants improperly continue to refuse to return the works of art. Defendant Rustarn Iseev opposes Plaintiffs summary judgment motion and argues in substance that Plaintiff fails to establish its entitlement to judgment in its favor, fails to demonstrate ownership or a superior right to possess the works of art, there was no contractual relationship as the proposed ~onsignrnent agreement between the parties was never signed and Defendant owes no fiduciary duty to Plaintiff.· To prevail on a motion for summary judgment, the movant must make a prima facie . . showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2014]; Alvarezy Prospect Hosp., 68 NY2d 320, 324 [1986]). The submission of 2 I " 3 of 5 [* 3] INDEX NO. 155936/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 03/03/2017 evidentiary proof must be in admissible form (Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1067-68 [1979]). The movant's initial burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 NY3d at 833; William J Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]). If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, ifthe moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman, 49 NY2d at 560; Jacobsen, 22 NY3d at 833; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]). Upon considering the admissible evidence submitted, the court finds that Plaintiff failed to demonstrate a prima facie showing of its entitlement to judgment as a matter of law or the absence of any material issues of fact. To the contrary, Defendant has demonstrated sufficient facts to contradict Plaintiffs arguments regarding Plaintiffs alleged o.wnership and entitlement to possession of the works of art and for any of Plaintiffs requested relief. As such, Plaintiffs motion for summary judgment is denied in its entirety with prejudice. Accordingly, it is hereby ORDERED that Plaintiffs summary judgment motion is denied in its entirety with prejudice and without costs to either side; and it is further 3 4 of 5 [* 4] INDEX NO. 155936/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 03/03/2017 ORDERED that the parties must appear for a compliance conference on April 20, 2017, j at 9:30 a.m., at the Supreme Court of the State of New York, Civil Term, in Part 47, Room 320, at 80 Centre Street, New York, New York. This constitutes the decision and order of the court. Dated: March 2, 2017 / 4 5 of 5

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